Strike out of judicial review
Decision date: 14 December 2005
Case: Ron West Motors (Otahuhu) Ltd v TRA and The Commissioner of Inland Revenue
Act(s): Income Tax Act 1976
Keywords: Judicial Review, Strike Out, Objection, Track A assessments
Summary
Commissioner's strike out application was granted because the High Court considered the judicial review proceedings could not be seriously argued.
Facts
This is a Russell related matter.
The taxpayer had been assessed under what is known as the Track A approach to the Russell template. After hearings at the TRA and the High Court, in which the taxpayer was unsuccessful, its appeal to the Court of Appeal was deemed abandoned and the tax litigation at an end.
Subsequently the taxpayer made what it considered to be a late objection to the assessments which had been affirmed in the tax proceedings. In essence the taxpayer argued that the Commissioner's subsequent assessments of another taxpayer (Mr Russell personally, under the Track C, D and E basis) made the assessments affirmed by the Courts incorrect. This argument was supported by reference to section 99(4) ITA 1976.
The Commissioner declined to accept the late objection on the basis he lacked any ability to amend the assessments after the Court process was completed.
The taxpayer sought judicial review and the Commissioner sought to strike out the proceedings.
Decision
Simon France J considered that the judicial review could not possibly succeed and should be struck out.
The Judge considered that section 99(4) was no impediment to having two concurrent assessments of the same taxable income (if such was the case here) provided the position was harmonised by amending one assessment to avoid any element of double taxation (at par [13]). His Honour:
"[15] In my view, there can be no sensible answer to this other than it is the Track A assessment, confirmed as correct by the Taxation Review Authority and the High Court, that cannot be amended. If the subsequent track C assessment is inconsistent, section 99(4) operates as a bar to that later track C assessment"
Thus the Court concluded that the late objection on the Track A assessments cannot succeed.
On the facts of this particular case, the Court further rejected the taxpayer's argument that the potential inconsistency was not known to the taxpayer or the Court at the time of the High Court's decision (at par [21] to [24]).
Justice Simon France added:
"...Further I do not consider it seriously arguable that the Commissioner should facilitate the recommencement of the objection process in relation to assessments that are 20 years old, and which have been the subject of full consideration before the Taxation Review Authority and the High Court." par [26]
Date published: 10 Oct 2006
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